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Lecture

Week 8 - Ground - Improper Exercise - Improper Purpose

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
GROUND OF JR – IMPROPER EXERCISE – Improper Purpose State Grounds for Judicial Review: Here it is necessary to examine the following grounds: • [list grounds] • Considering each… (In particular consider – Irrelevant & Relevant Considerations) IMPROPER EXERCISE OF POWER (Copied in other sections – only mention once) [5(e) and 6(e) AD(JR) Act (Cth) OR 20(e) and 21(e) JR Act (Qld)] provide an umbrella term for a number of self- contained grounds in [5(2) & 6(2) AD(JR) Act (Cth) OR 23 JR Act (Qld) in which an exercise of power can be reviewed on the grounds of improper exercise of power. 1. HAS [DECISION-MAKER] EXERCISE THE POWER FOR AN IMPROPER PURPOSE? In Municipal Council of Sydney v Campbell it was made clear that a discretionary power must not be exercised for a purpose other than that for which the power was either expressly or implied conferred. To do so is unlawful. [5(2)(c) and 6(2)(c) AD(JR) Act (Cth) OR 23(c) JR Act (Qld)] make this a statutory ground of review. 2. WHAT IS THE PURPOSE? To determine whether the power of [decision-maker] was improperly exercised under section ______ of [act] regard must be had to the authorised purposes of the power. IF purpose is EXPRESSLY stated: Here the authorised purposes are expressed in s _____ as ____________. IF purpose is IMPLIEDLY stated: [Here/In addition to the express purpose] there may also be purposes that are authorised by implication. To determine what these purposes may include regard must be had to the scope, subject matter and purpose of the legislation: Municipal Council of Sydney v Campbell. Here the legislation’s implied purposes is _____ therefore it is arguable that ________ are purposes for which the power under s_____ can be exercised: Mixnam. 3. HAVE POWERS BEEN USED FOR IMPROPER PURPOSE? Question on the balance of probabilities; Here alleged improper purpose is ________. N.B. Can have regard to extrinsic evidence, rather than the decision-maker’s statement of reasons to ascertain the purpose: Sydney Municipal Council v Campbell. (More than one of the below may apply) IF more than one person involved i.e. COMMITTEE: Here, like in IW v City of Perth problems may arise as here there are numerous bodies/people involved in making the decision. Where decision is made in committee, must show that the illegitimate purpose in the minds/voices of some had a real causative effect or was critical to the outcome (eg majority of the majority had an improper purpose): IW v City of Perth (minutes at board meetings). IF CLEARLY INVALID purpose: Here this ground is clearly made out as there is a deviation from the purpose provided for in the act. The facts here are similar to those in [case] where _________. - Mixnam Properties: Power to grant caravan park licenses and impose conditions did not authorise conditions regarding rent control; Social and economic aspects were outside the power. - Kwiksnax: Stall licensing power did not authorise protecting local shops from catering van competition; Social and economic aspects were outside the power. - Arthur Yates: Seed Board limited the purchase of seeds without permission was exercised for the improper purpose of self promotion and eliminating competition. - Schliske: deportation power was found to be invalidly exercised where it was used as a backdoor method after proper extradition proceedings had failed. By analogy here, _______. IF facts concern RESUMPTION OF LAND by local council: Here the power central to this ground is the resumption of land by council. This is similar to in MCS v Campbell and Thompson v Randwick. Where the councils resumed land for the purpose of defraying costs. - MCS v Campbell: Act empowered resumption for “improving and remodelling” and “widening or extending a public way”. By analogy here, _______. IF MULTIPLE PURPOSES: The facts here are complicated as there appears to be a legitimate and an improper purpose for the power being exercised in the way it has. Here [applicant] would be arguing that the improper purpose is [e.g. to profit off the sale of the resumed land]. There are two tests developed for this; where the improper purpose need either be: a substantial purpose: Thompson v Randwich; or a true or dominant purpose: Samrein. N.B. Samrein approved the “true or dominant purpose” and affirmed “substantial purpose” from Randwick. Here, _____________ (talk about statute and the factual circumstances) IF substantial: ‘powers not otherwise exercised’ Here [improper purpose] is a substantial purpose, because the power would not have been exercised by for the ability to [achieve improper purpose], similar to in Thompson v Randwick. Where power of land resumption would not have been authorised but for the ability to defray cost of construction. Distinguishable from Samrein because here it was not merely incidental purpose, because the power would not have been used otherwise. IF not dominant: ‘powers would still been used’ Here [imprope
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